Q That intelligent design, that's what Mr. Russell
had told you was Thomas More's name for the creationism
issue?

MR. GILLEN: Objection, Your Honor. He's offering a
hearsay statement for the truth of the matter asserted. And
what's more, Mr. Russell's characterization, if you read the
document, is his characterization of the issues not ours.

THE COURT: Well, the letter or the E-mail was
referred to without objection. So the question is couched in the
-- in the context of the letter.

MR. GILLEN: Okay. And my point, Judge, is simply
that the statement that Mr. Rothschild is referring to is his
description of the issue.

THE COURT: Well, if you take the question in
context, that intelligent design, that's what Mr. Russell told
you was Thomas More's name for creationism, I took it as Mr.
Rothschild referring to what Dr. Nilsen had received via this
E-mail. Why is that objectionable?

MR. GILLEN: Well, the only thing that I'm
intending to point out is when Mr. Russell says they referred to
the creationism issue as intelligent design, that's his
interpretation of the issue. Obviously from -- it's one of the
issues.

THE COURT: And I don't take it for the truth of
what the Thomas More Center may have actually thought. It is
simply a reflection, and I think that was the gist of the
question of what was transmitted to him through this E-mail.

THE WITNESS: Could you highlight the -- what
sentence in this E-mail, please, you are referring to? He speaks
to -- the quote is they refer to the creationism issue as
intelligent design. That's what's in the E-mail, yes.

A No. The reason we did not is the fact that the
curricular chair, or any board member for that matter, can bring
under miscellaneous any action. And knowing that he had an
interest in that, I preferred the board to know prior to the
agenda -- when they received the agenda prior to the meeting what
was going to happen.

So anytime someone tells me that they are going to
bring something up, even if I'm not supportive of it, I prefer to
put it on the agenda so individuals, the board members and the
community are aware of what's happening.

Q They were sent a memo with the change to the
curriculum information, but there was no meeting. Correct?

A No. His comment was he had thought he had
already received enough information from the curriculum committee
meeting and that the committee members had conveyed information
over the past six months, and he didn't see another reason to
hold another meeting and get the same input that he has gotten
over the past six months.

Q Well, you did get a little bit of feedback back
from the curriculum advisory committee. Right?

Q Mr. Baksa had prepared that memorandum with the
couple of suggestions by the members of the curriculum advisory
committee?

A Yes. When Mr. Buckingham said he didn't want it
meeting again, I talked to Mr. Alan Bonsell, the president, and I
communicated to him that I was going to send the information out
to the curriculum committee anyway and he supported that. In like
fashion, we had two items that came back.

Q And the two items that came back were, according
to policy, curriculum advisory committee should review changes
first before going to the board, which you have explained you
disagree with as a matter of policy. Right?

Q As you've said now again, Mr. Buckingham said
we've had enough input over the last six months. Right?

A Correct. He ended up leaving -- as I stated in
my testimony yesterday, that he wanted to make sure that all the
board members that had been involved in the discussion for the
past six months had an opportunity to vote on it, because he was
under the understanding that two individuals were not going to be
on the board in the near future.

Q Okay. And so that period would have included the
board meetings in June where the newspapers had reported that
many religious statements were made by board members including
balancing evolution with creationism and 2,000 years ago a man
died on a cross and other religious statements. Correct?

MR. GILLEN: Mr. Rothschild is asking whether the
board sought to deprive them of their text. They had a text. The
question is whether they were going to get another text. If he
rephrases the question precisely, I would have no objection.

Q This period included the August 2nd board
meeting in which board members Buckingham, Harkins and Geesey had
voted to deprive the students and teachers of the new biology
textbook recommended by the teachers. Correct?

Q And the board members who voted against the
final version of the policy, Mrs. Brown, Mr. Brown and Mr.
Wenrich, they actually indicated they would have voted for
versions B or C, as well. Is that correct?

Q And it might require your review all the way
through 160. But this is a rather complicated set of
parliamentary maneuvers to put on the agenda different versions
of the change to the biology curriculum?

Q And if you could take a minute to review that
and tell me if I'm correct that the three ultimately dissenting
board members; Mrs. Brown, Mr. Brown and Mr. Wenrich all
indicated through their votes that they would support versions B
and C.

A I don't see any final vote on B or C. What I see
is motions to move the discussion or the vote to A -- I'm sorry
-- from A to B and C. There is no final vote on either B or
C.

Q Fair enough. So they were supportive of a vote
to -- they were supportive of moving the consideration from A to
versions B and C; Mr. Brown, Mrs. Brown and Mr. Wenrich?

Q Okay. So just to summarize, for votes B and C,
there is some indication that Mr. and Mrs. Brown and Mr. Wenrich
would have supported those versions. Correct? They wanted the
consideration to move to those versions?

A I'll state it the way you did in the second half
of your question. They voted to consider B and C. I can't
recollect, nor does the minutes reflect, how they would have
voted eventually on B and C.

Q And certainly, the administrators and the
teachers were supporting B and C?

Q But he blocked -- he joined other board members
in blocking every effort to even bring B and C to a vote.
Correct?

A To a vote, yes. But the concept behind C, no.
Meaning later on you'll note in the minutes the major concept of
C was note the Origins will not be taught, and he's the
individual seconded, I believe by Mr. Brown, that he moves the
origins of life will not be taught to A, because he believed the
major sticking point with the professional staff was that the
intelligent design was going to be taught.

So his consensus effort, at least from my
viewpoint and understanding, is the fact that he was looking at
developing a consensus between the teachers and a majority of the
board by addressing their individual concern that intelligent
design was taught, and he thought he had directly addressed their
concern with the support of one of the three, Mr. Brown.

Q But adding origins of life didn't actually meet
the teachers' concern that intelligent design not become part of
the curriculum?

A I think that's eventually what the
interpretation was. But I would hesitate to make an understanding
that I think at that time period he thought he had developed a
consensus that the teachers would be satisfied with it.

Q Dr. Nilsen, there is no way anybody could reach
that interpretation about the teachers' position from what the
teachers said at that October 18th meeting. Isn't that right?

Q Didn't Jennifer Miller jump up at one point in
response to Mrs. Geesey's -- and I don't want to get into who
Mrs. Geesey's comment was directed at. But Ms. Miller was adamant
that the teachers not be construed to have been the authors of
the curriculum change that was being voted into place?

Q Now, at the time this was passed there was very
little discussion about what intelligent design actually is.
Isn't that right?

A I can't speak to what the board did or what Mr.
Baksa did. I can only speak to what I did.

Q In terms of what you actually observed, there
was very little discussion of what intelligent design actually
is. Isn't that right?

A From my viewpoint of what I saw, again, I can't
speak to what was discussed in the curricular areas. I can only
speak to my responsibility. And I did not see anything from my
responsibility, although I can't speak for the board or anybody
else.

Q And you answered, "Students prior to the change
only knew that there was one theory, Darwin's, and there were
students that held other theories. And those that were priorly
discriminated against now know that there are other theories and
can believe those other theories and not believe the school
district is discriminating against their beliefs."

Q That was your answer to how this was enhancing
the science curriculum beyond how it stood before the curriculum
change, that it would mean that we -- that the district was no
longer discriminating against student beliefs?

Q In your experience as an educator, the only time
students are directed not to discuss topics and teachers are not
permitted to comment on topics with students is for issues of
political affiliation, sexual education, issues that are highly
politically charged and religion. Correct?

A That was examples I gave you. I also told you
that there may also be items that are far afield of what is in
the planned courses and/or not in the standards.

Q And you actually testified today about that,
that you discussed with Jen Miller what would happen if questions
were asked. Right?

Q And you answered to her well, you handle it like
everything else that's not in the curriculum; you don't have to
answer those questions. Right?

A No. What I think I believe I said is that the
teachers would say that was a good question, not what we're
teaching at this time period. You may refer to your own
individual research and/or your parents.

Q Okay. But in any event, this is -- this item
here is not like things that are outside the curriculum. This is
something that's inside the curriculum. Right?

Q And in that letter I made you aware of Pepper
Hamilton, the ACLU and American United's representation of
certain parents of children in the Dover Area School
District?

A I believe you actually made Mr. Russell aware of
that and eventually made me.

Q Fair enough. And I also made Mr. Russell aware
that we felt we had a very strong case that this violates the
First Amendment and that if parents prevail in the lawsuit there
would be recovery of attorneys' fees for the prevailing parties.
Right?

Q And going over to the next page, in the first
full paragraph it states, "If the defendants agree to resolve
this matter in this fashion, which is nothing more than what the
law otherwise requires, the plaintiffs and their attorneys will
agree not to apply for the attorneys' fees and expenses to which
they otherwise would be entitled." Correct?

Q That included they had acted in a professional
manner, they made every attempt to maintain the integrity of the
Pennsylvania state science standards and the Constitution of the
United States of America. Correct?

Q Dr. Nilsen, I'm going to give you a copy of the
newsletter and also the answer filed in this case by defendants.
That's Exhibit P-120.

Dr. Nilsen, if you could go to the second page of
the newsletter and look at the section entitled quotables.
There's a quote from Rick Santorum. Right? "The Dover Area School
District has taken a step in the right direction by attempting to
teach the controversy of evolution." Right?

Q Then at the bottom of the page there's a quote,
"Where topics are taught that may generate controversy such as
biological evolution, the curriculum should help students to
understand the full range of scientific views that exist."

It's attributed to conference report from the No
Child Left Behind Act of 2001. That's sometimes called the
Santorum Amendment. Is that right?

Q -- "adopted on October 18th, 2004 reflects the
intent of the Santorum Amendment to the No Child Left Behind Act
of 2001 which was adopted by the U.S. Senate, 91 to 8, and
included in the final conference report as follows."

And you quote the same language that you had in
the newsletter, "Where topics are taught that may generate
controversy, paren, such as biological evolution, closed paren,
the curriculum should help students to understand the full range
of scientific views that exist, why such topics may generate
controversy and how scientific discoveries can profoundly affect
society."

So there again, the district is relying on the
Santorum Amendment. Correct?

Q If you could turn to the next page and go down
to the second full paragraph. Now, you see the language that's
relied upon in the answer and in the newsletter, Where topics are
taught that may generate controversy, that's actually the second
sentence of that paragraph. Correct?

Q Could you read the first sentence of that
paragraph into the record?

A "The Conference recognizes that a quality
science education should prepare students to distinguish the data
and testable theories of science from religious or philosophical
claims that are made in the name of science."

Q And that's not something that the Dover Area
School District communicated to its citizens in the newsletter.
Correct?

Q They are told that John Jay was the first chief
justice of the United States, is that teaching?

A I continue to answer it in the same way. As I
have defined teaching, no.

Q If they are taught about the presidency of
Franklin Delano Roosevelt and they are told only the following
about -- and they are taught a lot about Franklin Roosevelt, but
they are taught only this about the court packing episode; in
1937 Franklin Delano Roosevelt tried to add several members to
the Supreme Court bench and many people opposed it because they
thought it was unconstitutional, is that teaching?

MR. ROTHSCHILD: He's not been -- he's not been
offered or qualified as an expert in this case. I have no
objection to him giving his opinion or understanding, but it
should not be treated as expert testimony.

THE COURT: I think that's the point. I think he's
qualified to answer it. I think your objection goes to the weight
that the Court should give it. So I'll overrule the objection.
I'll let him answer. I understand your point.

THE WITNESS: There are basically four components
to teaching; one specifically behavioral objectives; secondly,
specific learner behaviors or outcomes; thirdly, materials used;
and fourthly, assessment based on the behavioral objectives.

Q Thank you. Mr. Rothschild has mentioned that an
individual, Mr. Reeser, spoke at the March 26th, 2003 board
retreat, and he's also pointed out that Mr. Reeser is the
individual who destroyed a display in a science classroom in the
Dover Area School District.

Did you tell Mr. Reeser anything when you learned
he had done that?

A Yes. I brought him in my office and told him if
he continued behavior like that he would be terminated.

Q At the time you received the Peterman memo, did
you have the information that Jen Miller provided to this Court
in her testimony in court?

MR. ROTHSCHILD: Your Honor, move to strike. I'm
not sure what he even based that on. They testified in this court
-- Ms. Callahan testified in this court of a recollection of
that.

MR. GILLEN: The record will speak for itself. He's
speaking to his recollection of Jen Miller's testimony.

THE COURT: Deny the motion to strike. It's the
Court's recollection that controls. My recollection may comport
with yours and I understand your point, but I'm not going to
strike it. It's his testimony. I don't take that as controlling.
I'll weigh the evidence and make a determination.

Q Did you ever believe that the students would not
get the biology text recommended by the science faculty?

A No. In fact, my statement to the board was the
fact that when they eventually agree on the text it would end up
being mid September when we would start with the teachers using
two different texts. There was never a perception that we would
not get a new text.

Q Mr. Rothschild has drawn your attention to the
fact that it is unusual for a reference text to be specifically
referenced in the curriculum. Why is it specifically
referenced?

A The only reason it was referenced was because
the concern of the teachers and my attempt to convey my support
and legal coverage for them.

Q Mr. Rothschild has drawn your attention to the
fact that besides the book of Pandas, the other texts that were
donated were not listed in the revised statement which was read
to students in June of 2005. Why were those individual texts not
listed in the statement?

A Because I think they would end up being -- first
of all, I think there were a lot of different texts. We were just
referring to the group of texts.

Q Mr. Rothschild has questioned you at some length
about Defendant's -- Plaintiff's Exhibit 70. Would you look at
that, please?

Q Mr. Rothschild asked you if the document had a
Pandas in it, and you responded it did not. Does the E-mail
reference text?

A Yes. It references it in two places. In fact,
this is an answer to questions that I had conveyed to him. So I
think it was pretty much assumed when he was answering my
questions what he was referring to.

Q Do you have an understanding concerning what
text is being referenced?

Q You've -- Mr. Rothschild has asked you about
Bill Buckingham requesting that you put the board curriculum
version of the proposed curriculum change on the agenda for the
October 4th, 2004 board meting. Could you stop Mr. Buckingham
from bringing it up?

A No. In fact, that's why I put it on the agenda,
because I knew if I didn't put it on the agenda he was going to
bring it up under miscellaneous.

Q Do you have an understanding concerning the
purpose of making that note to the curriculum?

A Yes. Mr. Bonsell wanted to reassure the teachers
that they would not in the future have to teach the origins of
life.

Q Mr. Rothschild has asked you some questions
about the movement of the text Of Pandas into the library. I want
to ask you, did you move the text to the library because of the
lawsuit or because of the practical considerations you have
described?

A I moved it because the practical considerations,
and I also thought it was educationally appropriate there.

Q Did you think that Of Pandas should be put in
the library because you thought Of Pandas was a creationist
text?

Q Mr. Rothschild has drawn your attention to
portions of the senate report requiring -- or indicating that it
is good education to distinguish scientific from religious or
other philosophical assertions.

Did you believe that intelligent design was a
religious or philosophical assertion?

Q Why don't we turn to page 16 of your deposition?
Turning your attention to page 16, line two. I asked you Mr. --
Mr. Nilsen. I forgot to use your title of doctor. "Mr. Nilsen,
the draft resolution uses the term intelligent design. What do
you understand intelligent design to mean as used in this
resolution?" You asked, "Which resolution?" I asked, "The
resolution that is the final resolution that is set forth in the
complaint." You answer, "Scientifically evolution has a design."
I asked, "Anything else?" You said, "No." And I asked you, "Where
did you gain that understanding?" You said, "In discussions I
have had with numerous individuals." I asked, "Can you identify
those individuals?" You said, "Counsel and board members." I
asked, "Anybody else?" You said, "To my recollection, no."

So that was the extent of your understanding of
the scientific nature of intelligent design several months after
the resolution had been passed?

A In January, yes. Subsequent to that, obviously
I've learned a lot more.

Q That was what the board curriculum committee was
discussing at a meeting that you didn't participate in.
Correct?

A That's correct. But that doesn't mean that that
had not been a conversation that I had had with Mr. Baksa when
this whole process was evolved. When we were talking about the
Pandas book being a reference, all the way back to when the
teachers accepted it in August, I'm sure I had conversations
about where it would be placed in the curriculum when Mr. Baksa
was going through that process.

I'm sure, but I can't be specific, I would have
had conversations that if teachers had a concern about it, a good
place to put it would end up being in the reference section.

Q Let's be clear here. We're not talking about the
reference section or anything about the library. We're talking
about whether Of Pandas and People would be cited as a reference
source in the curriculum?

Q So any combination of Ms. Cleaver, Ms. Yingling,
Ms. Geesey, Ms. Harkins and Mr. Bonsell; any two of those five
could have joined the Browns and Mr. Wenrich to stop the
curriculum change from being voted on at that meeting.
Correct?

THE COURT: I would say 4:30. I don't want to beat
this to death today unless we're drastically behind. Do you want
to try to pick up some more time at the end of the day, which I
hate to do on Friday but --

THE COURT: Liz has the stick out. She's afraid
we're getting behind. I, of course, don't get concerned about
these things. All right. We'll go to 4:30. Let's take our break
now for the afternoon and take it up with Baksa after that.
Okay.

THE COURT: All right. We'll take our afternoon
break at this point and we'll take the defendant's next witness
at the end of the 20 minute break, and we'll go until
approximately 4:30 this afternoon. We'll stand in recess for 20
minutes.